Pheng Khov v. Department of Health and Human Services

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PHENG KHOV, DOCKET NUMBER

Appellant, DC-0432-18-0300-I-1

v.

DEPARTMENT OF HEALTH AND DATE: November 30, 2023

HUMAN SERVICES,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Joanna Friedman , Esquire, and Sarah L. McKinin , Esquire, Washington,

D.C., for the appellant.

Stephanie Hosea and Jennifer Smith , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his performance-based removal under 5 U.S.C. chapter 43. For the

reasons discussed below, we GRANT the appellant’s petition for review,

REVERSE the initial decision, and REMAND the case to the regional office for

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

further adjudication in accordance with this Remand Order. The appellant’s

removal is NOT SUSTAINED.

BACKGROUND

¶2 On January 8, 2017, the agency appointed the appellant by reinstatement to

the position of GS-0343-14 Supervisory Program and Management Analyst in its

Bureau of Health Workforce (BHW), Division of Business Operations. 2 Initial

Appeal File (IAF), Tab 13 at 11. The appellant’s job duties involved managing

BHW’s information technology (IT) systems to ensure their efficiency,

effectiveness, and legal compliance, as well as managing a team of subordinates

and ensuring the efficiency and effectiveness of BHW’s IT workforce. IAF,

Tab 13 at 14-15. As a Supervisory Program and Management Analyst, the

appellant had five critical performance elements: (1) Teamwork, (2) Customer

Service, (3) Leadership, (4) BHW IT Portfolio Oversight, and (5) Special

Projects. IAF, Tab 11 at 7-12. His performance was evaluated under a five-tier

rating system, from lowest to highest: (1) Achieved Unsatisfactory Results,

(2) Partially Achieved Expected Results, (3) Achieved Expected Results,

(4) Achieved More than Expected Results, and (5) Achieved Outstanding Results.

Id. at 5.

¶3 On July 14, 2017, the appellant’s first-level supervisor, the Director of

Division Operations, notified him that he was currently performing at an

unacceptable level in the critical element of BHW IT Portfolio Oversight and

placed him on a 60-day performance improvement plan (PIP). Id. at 23-29. On

September 18, 2017, the appellant’s supervisor notified him that he had failed to

demonstrate acceptable performance during the PIP, and on November 1, 2017, he

proposed the appellant’s performance-based removal under the procedures of

5 U.S.C. chapter 43. IAF, Tab 10 at 14-24, Tab 11 at 30-31. After the appellant

responded, on December 29, 2017, the appellant’s supervisor issued a decision

2

It appears that the appellant had career tenure upon reinstatement. IAF, Tab 13 at 11;

see 5 C.F.R. §§ 315.201(c)(4), 315.402(b)

3

removing him effective January 8, 2018. IAF, Tab 9 at 25-74, Tab 10 at 4-11,

15-22.

¶4 The appellant filed a Board appeal, challenging the merits of his removal

and raising affirmative defenses of harmful procedural error and whistleblower

reprisal. IAF, Tab 1 at 7, 12, Tab 24 at 1-2. After a hearing, the administrative

judge issued an initial decision affirming the appellant’s removal. IAF, Tab 33,

Initial Decision (ID). He found that the agency proved its case by substantial

evidence, ID at 2-38, and that the appellant failed to prove his affirmative

defenses of whistleblower reprisal, ID at 39-53, or harmful procedural error, ID

at 53-57.

¶5 The appellant has filed a petition for review, arguing that his performance

standards were invalid and disputing the administrative judge’s analysis, findings,

and credibility determinations with respect to his affirmative defenses. Petition

for Review (PFR) File, Tab 5. The agency has filed a response to the petition for

review, and the appellant has filed a motion to strike the agency’s response as

untimely. PFR File, Tabs 11, 12.

ANALYSIS

The appellant’s motion to strike the agency’s response to the petition for review

is granted.

¶6 The agency’s response to the petition for review was originally due on

January 4, 2018. PFR File, Tab 1, Tab 6 at 1; see 5 C.F.R. § 1201.114(e). The

agency requested an extension of time to file its response, which the Office of the

Clerk of the Board granted, setting a new deadline of January 25, 2019. PFR

File, Tabs 7, 8. However, at midnight on December 22, 2018, the Board ceased

all operations due to a partial government shutdown. PFR File, Tab 10 at 1 n.*.

The Board promptly issued a press release, notifying the public that all filing and

processing dates would be extended by the number of calendar days that the

Board was shut down. Press Release, U.S. Merit Systems Protection Board,

4

Status of the U.S. Merit Systems Protection Board During a Partial Government

Shutdown (Dec. 21, 2018), available at https://www.mspb.gov/ (last visited

November 29, 2023). On January 26, 2019, the Board resumed operations after

being shut down for 35 days. PFR File, Tab 10 at 1 n.*. Thus, the agency’s

January 25, 2019 filing deadline was extended 35 days to March 1, 2019.

¶7 On March 4, 2019, the agency requested an extension of time to file its

response to the petition for review, which the Office of the Clerk of the Board

denied under 5 C.F.R. §1201.114(f) as having been filed past the date that the

response was due. PFR File, Tabs 9, 10. On March 6, 2019, the agency filed its

response to the petition for review, requesting that the Board find good cause for

the untimely filing on the basis that its representative miscalculated the revised

filing deadline. PFR File, Tab 11. However, it is well established that a party’s

error in calculating the filing deadline generally does not constitute good cause to

excuse an untimely filing. See Lapedis v. Department of Health and Human

Services, 47 M.S.P.R. 337, 340, aff’d, 949 F.2d 403, (1991) (Table); Gaff v.

Department of Transportation, 45 M.S.P.R. 387, 390 n.2 (1990); cf. Walls v.

Merit Systems Protection Board, 29 F.3d 1578, 1583-84 (Fed. Cir. 1994) (finding

good cause for a 2-day filing delay when instructions on how to calculate the

deadline were ambiguous). In the interests of fairness and adjudicatory

efficiency, the Board will not waive its timeliness requirements in the absence of

good cause, no matter how minimal the delay. Fitzgerald v. Department of

Veterans Affairs, 45 M.S.P.R. 222, 223 (1990). The appellant’s motion to strike

is granted. PFR File, Tab 12; see Bissett v. U.S. Postal Service, 66 M.S.P.R. 631,

635 n.1 (1995).

The agency failed to prove by substantial evidence that its performance standards

are valid.

¶8 At the time the initial decision was issued, the Board’s case law stated that,

to prevail in an appeal of a performance-based action under 5 U.S.C. chapter 43,

an agency must establish by substantial evidence that: (1) the Office of Personnel

5

Management approved its performance appraisal system; (2) the agency

communicated to the appellant the performance standards and critical elements of

his position; (3) the appellant’s performance standards are valid under 5 U.S.C.

§ 4302(c)(1); (4) the agency warned the appellant of the inadequacies of his

performance during the appraisal period and gave him a reasonable opportunity to

improve; and (5) the appellant’s performance remained unacceptable in at least

one critical element. 3 White v. Department of Veterans Affairs, 120 M.S.P.R.

405, ¶ 5 (2013). During the pendency of the petition for review in this case, the

U.S. Court of Appeals for the Federal Circuit held in Santos v. National

Aeronautics and Space Administration, 990 F.3d 1355, 1360-61 (Fed. Cir. 2021),

that, in addition to the five elements of the agency’s case set forth in the initial

decision, the agency must also justify the institution of a PIP by proving by

substantial evidence that the employee’s performance was unacceptable prior to

the PIP. The Federal Circuit’s decision in Santos applies to all pending cases,

including this one, regardless of when the events took place. Lee v. Department

of Veterans Affairs, 2022 MSPB 11, ¶ 16.

¶9 In this case, the administrative judge found that the agency carried its

burden on each element. ID at 3-38. On petition for review, the appellant argues

that the agency failed to prove the third element of its case because the

performance standard at issue was written in negative terms. In other words, it

was an impermissible “backwards” standard. PFR File, Tab 1 at 5, 14-20.

¶10 In order to be valid under 5 U.S.C. § 4302(c)(1), a performance standard

must state in positive terms what an employee must do in order to achieve

acceptable performance; it cannot be written in terms of what an employee must

not do. Van Prichard v. Department of Defense, 117 M.S.P.R. 88, ¶ 18 (2011),

aff’d, 484 F. App’x 489 (Fed. Cir. 2012). Standards of the latter type are known

3

Under the agency’s five-tier performance system, the agency was required to show

that the appellant’s performance was at the Unsatisfactory level rather than the Partially

Achieved level. See Van Prichard v. v. Department of Defense, 117 M.S.P.R. 88, ¶ 24

(2011), aff’d, 484 F. App’x 489 (Fed. Cir. 2012).

6

as “backwards” standards and are invalid because they do not clearly apprise an

employee of what he must do to perform successfully in his position. Eibel v.

Department of the Navy, 857 F.2d 1439, 1441-44 (1988); Ortiz v. Department of

Justice, 46 M.S.P.R. 692, 695-96 (1991). They identify unacceptable

performance rather than acceptable performance. Henderson v. National

Aeronautics and Space Administration, 116 M.S.P.R. 96, ¶12 n.3 (2011).

¶11 The performance standard at issue in this appeal reads in relevant part as

follows:

Level 2: Partially Achieved Expected Results (PA)

Marginally acceptable; needs improvement; inconsistently meets

Leve/3 (AE) performance requirements. The employee has

difficulties in meeting expectations. Actions taken by the employee

are sometimes inappropriate or marginally effective. Organizational

goals and objectives are met only as a result of close supervision.

This is the minimum level of acceptable performance for retention on

the job. Improvement is necessary. Examples include:

• Sometimes meets assigned deadlines;

• Work assignments occasionally require major revisions or often

require minor revisions;

• Inconsistently applies technical knowledge to work assignments;

• Employee shows a lack of adherence to required procedures,

instructions, and/or formats on work assignments;

• Occasionally employee is reluctant to adapt to changes in priorities,

procedures or program direction which may contribute to the

negative impact on program performance, productivity, morale,

organizational effectiveness and/or customer satisfaction. Needs

improvement.

IAF, Tab 11 at 15-16. The administrative judge considered the appellant’s

argument that this standard was invalid for being backward, but he found

that when read in conjunction with the performance element at issue and

the standards for performance at other levels, the appellant was on adequate

notice of what was being required of him. ID at 8-9.

7

¶12 We agree with the appellant that the performance standard for Partially

Achieved is backwards as written. We find it materially indistinguishable from

the standards at issue in Eibel, 857 F.2d at 1440, Oritz, 46 M.S.P.R. at 695,

Jackson-Francis v. Office of Government Ethics, 103 M.S.P.R. 183, ¶ 9 (2006),

and the various other cases in which the Board and the Federal Circuit have held

performance standards invalid as backwards. It describes unacceptable rather

than acceptable performance, and if read literally, the appellant would meet this

standard by rendering unacceptable performance. See Burnett v. Department of

Health and Human Services, 51 M.S.P.R. 615, 617 (1991). For instance,

assuming that the performance deficiencies identified in the notice of proposed

removal are accurate, the appellant met the stated requirement that his work will

occasionally require major revisions. IAF, Tab 10 at 17-18, 20. In addition, the

appellant was alleged to have failed to follow his supervisor’s instructions in

completing work assignments, consistent with the terms of the standard. Id.

at 20-22. It also appears that the appellant met at least one deadline set by his

supervisor, thereby satisfying the only positive, albeit vague, requirement to

“sometimes” meet assigned deadlines. IAF, Tab 10 at 20; see Wilson v.

Department of Health and Human Services, 770 F.2d 1048, 1053 (Fed. Cir. 1985)

(finding that the terms “sometimes” and “occasionally” as used in the appellant’s

performance standards were vague).

¶13 We have considered whether this backwards standard can be saved by

reference to other documents as the administrative judge found. ID at 8-9. It is

true that an agency is not prohibited from using more than one document to set

forth the standards against which an employee’s performance will be rated, and

that certain defects in the standards may be cured by providing additional

guidance to be read in conjunction with them. Diprizio v. Department of

Transportation, 88 M.S.P.R. 73, ¶¶ 11-12 (2001). However, the Board and the

Federal Circuit have both found that, in contrast to vague and subjective

performance standards, which can be fleshed out and clarified during counseling,

8

backwards performance standards are beyond salvage because they would need to

be completely rewritten in order to describe acceptable performance at all. Eibel,

857 F.2d at 1443; Jackson-Francis, 103 M.S.P.R. 183, ¶ 10; Dancy v. Department

of the Navy, 55 M.S.P.R. 331, 335 (1992); Burnett, 51 M.S.P.R. at 617-18.

Although we agree with the administrative judge that the performance standards

must be read in conjunction with the performance elements, the performance

elements appear to describe perfect performance, which is presumably not

required even at the “Outstanding” level and is all the more unhelpful to

determine the performance required at the “Partially Achieved” level. ID at 8-9,

IAF, Tab 11 at 11-12, 15-16.

¶14 For these reasons, we find that the agency has failed to prove that its

performance standards are valid, and we therefore reverse the appellant’s

removal. See Stone v. Department of Health and Human Services , 35 M.S.P.R.

603, 607 (1987). Because we are reversing the agency’s action on the merits, we

do not address the appellant’s arguments concerning harmful procedural error. 4

PFR File, Tab 1 at 6, 20-23; see Van Prichard, 117 M.S.P.R. 88, ¶¶ 7, 25.

The appellant’s whistleblower claim is remanded for further adjudication.

¶15 To prove an affirmative defense of whistleblower reprisal, an appellant must

show by preponderant evidence that he engaged in protected activity under

5 U.S.C. § 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), and that the protected

activity was a contributing factor in the personnel action under appeal. Alarid v.

Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015). If the appellant

makes both of these showings, the burden of persuasion shifts to the agency to

prove by clear and convincing evidence that it would have taken the same action

in the absence of the appellant’s protected activity. Id., ¶ 14.

¶16 In his prehearing submission, the appellant identified nine alleged protected

activities between February 2017 and October 2017 that formed the basis of his

4

The appellant does not argue that his harmful error defense has any relation to his

whistleblower claim.

9

whistleblower defense. IAF, Tab 16 at 11-18. In his initial decision, the

administrative judge found that the appellant failed to prove that he engaged in

protected activity that was a contributing factor in his removal. ID at 39-53. He

addressed only two of the alleged activities specifically—a February 17, 2017

disclosure to the appellant’s first-level supervisor that the supervisor was

committing misconduct in his dealings with a contractor, and a May 3, 2017

complaint to the agency’s Inspector General (IG) in which the appellant reported

that his supervisor was retaliating against him for whistleblowing. ID at 51-53;

IAF, Tab 16 at 11-14. Regarding the appellant’s February 17, 2017 disclosure,

the administrative judge found that it lacked sufficient credibility to cause the

appellant’s supervisor any concern, and that the appellant’s performance

deficiencies “overshadow[ed] anything that might technically qualify as a

disclosure.” ID at 52-53. Regarding the May 3, 2017 IG complaint, although the

appellant informed his supervisor of the complaint the same day, the

administrative judge found that the appellant’s supervisor did not understand

during the relevant timeframe what the appellant’s reference to the IG complaint

was about, the appellant’s vague statements to his supervisor lacked any

information that might generate retaliatory animus, and in any event, the

supervisor’s concerns about the appellant’s performance began in March—well

before the appellant’s claimed protected activity in May. ID at 52. The

administrative judge found that the remainder of the alleged protected activity

was of no significance. Id. On petition for review, the appellant disputes the

administrative judge’s findings with respect to three of his claimed protected

activities—the May 3, 2017 IG complaint, the February 17, 2017 disclosure to the

appellant’s supervisor, and a February 15, 2017 disclosure in which the appellant

related to several individuals at a meeting similar concerns to those he raised in

his February 17 disclosure. 5 PFR File, Tab 5 at 28-34; IAF, Tab 16 at 11-14.

5

Because the appellant does not argue that the administrative judge erred in assessing

the remainder of his claimed protected activities, we do not address them. See 5 C.F.R.

§ 1201.115 (“The Board normally will consider only issues raised in a timely filed

10

¶17 Regarding his February 2017 disclosures, the appellant testified that, during

a February 15, 2017 meeting with several of his team members, the discussion

turned to the agency’s relationship with a particular contractor, Sapient. IAF,

Tab 16 at 11-12; Hearing Transcript, July 24, 2018 (HT2) at 459 (testimony of

the appellant). The appellant learned at the meeting that his first -level supervisor

was a former Sapient employee overseeing the Sapient contract, and he expressed

his belief that this was “a violation of [Federal Acquisition Regulation (FAR)]

5000 series.” HT2 at 460 (testimony of the appellant). The appellant also stated

that he learned that Sapient had direct access to his supervisor without any agency

Contracting Officer’s Representative being present, and that this gave the

appearance of favoritism and a conflict of interest and was a violation of the FAR

5000 series as well. Id. at 462-63 (testimony of the appellant). He also

questioned why Sapient was the only contractor present in the Division of

Business Operations. Id. at 459-60. According to the appellant, on February 17,

2017, he verbally expressed these same concerns directly to his supervisor. IAF,

Tab 16 at 12; HT2 at 464 (testimony of the appellant).

¶18 As an initial matter, it appears to us that the appellant’s reference to the

“FAR 5000 series” pertains to the series of Department of Defense Instructions

governing acquisitions in the Department of Defense and its components. See,

e.g., Department of Defense Instruction No. 5000.02, Operation of the Defense

Acquisition System (Aug. 31, 2018), available at https://www.esd.whs.mil/

Directives/issuances/dodi/ (last accessed November 29, 2023). Not only has the

appellant failed to identify the particular provision of this complicated and

voluminous set of issuances that he believes was violated, but he has also failed

to explain why he believes that Department of Defense issuances apply to the

Department of Health and Human Services, which is a separate cabinet level

department. Nevertheless, a disclosure may be considered protected even in the

absence of identification of a specific law or regulation when the employee’s

petition or cross petition for review.”).

11

statements and the circumstances surrounding those statements clearly implicate

an identifiable violation. Langer v. Department of the Treasury, 265 F.3d 1259,

1266 (Fed. Cir. 2001). This appears to have been the case here because the

agency’s Division of Policy and Data Analysis (DPDA) investigated similar

allegations made by two unidentified “BHW whistleblowers” and found that they

had some merit, albeit with respect to laws and regulations other than the

Department of Defense instructions that the appellant identified. 6 IAF, Tab 17

at 17-26. In a December 12, 2017 investigative report, DPDA found that Sapient

was working directly with the Division of Business Operations leadership

(including the appellant’s first-level supervisor), which was improperly cutting

the Contracting Officer’s Representatives out of the process. Id. at 18-19. DPDA

also found that the appellant’s supervisor should have recused himself from

overseeing the Sapient contract because there was an appearance of a conflict of

interest with his former employer. Id. at 19-20. DPDA further found that

Division of Business Operations leadership violated various contracting laws and

regulations by circumventing the acquisition process and awarding work directly

to Sapient outside the scope of the existing contract. Id. at 21-25. Without

finding whether any abuse of authority or violation of law, rule, or regulation

actually occurred, we find, based on this investigative report, that the appellant

proved by preponderant evidence that he had a reasonable belief that they did.

See Kinan v. Department of Defense, 87 M.S.P.R. 561, ¶ 14 (2001) (finding the

appellant’s belief reasonable largely because it was corroborated by agency

investigations); see also Murphy v. Department of the Treasury, 86 M.S.P.R. 131,

¶ 6 (2000) (defining an “abuse of authority” as an arbitrary or capricious exercise

of power by a Federal official or employee that adversely affects the rights of any

person or results in personal gain or advantage to himself or to other preferred

persons).

6

The record does not appear to be conclusive about whether one of these

“whistleblowers” was the appellant.

12

¶19 Nevertheless, we are unable to determine on the existing record whether the

appellant’s February 2017 disclosures actually occurred, much less whether they

were a contributing factor in his removal, because there is conflicting evidence on

the issue. As set forth above, the appellant testified that, on February 15 and 17,

2017, he made the disclosures as described. Supra ¶ 16. His testimony, at least

with regard to the February 15, 2017 disclosure, is corroborated by the testimony

of an individual who was supposedly in attendance at that meeting. IAF, Tab 16

at 11; HT2 at 601-03 (testimony of Senior IT Specialist). However, the

appellant’s supervisor denied that the appellant ever raised concerns to him about

a conflict of interest prior to May 3, 2017. HT1 at 67-68 (testimony of the

appellant’s supervisor). Furthermore, one of the individuals who was supposedly

at the February 15, 2017 meeting denied that the appellant ever expressed any

concerns about his supervisor’s conflict of interest with Sapient. IAF, Tab 16

at 11; HT1 at 295 (testimony of IT Specialist). The administrative judge did not

make any definitive findings on whether the appellant actually made these two

disclosures or whether his supervisor was aware of them. 7 ID at 52. Because the

resolution of this issue involves the weighing of conflicting testimony and the

assessment of witness credibility, we find it appropriate to remand this appeal to

the administrative judge to address the issue in the first instance. See Adair v.

U.S. Postal Service, 66 M.S.P.R. 159, 166 (1995).

¶20 Regarding the appellant’s claimed May 3, 2017 IG complaint, we find that

this would constitute protected activity under 5 U.S.C. § 2302(b)(9)(C).

7

It is not clear whether the administrative judge found that the appellant’s claimed

February 17, 2017 disclosure was not protected, or was not a contributing factor in his

removal, or both. ID at 52-53. However, as explained above, the February 2017

disclosures would have been protected if the appellant made them as described. Supra

¶ 17. Furthermore, if his supervisor were aware of them, nexus would be established

through the knowledge/timing test of 5 U.S.C. § 1221(e)(1) because the claimed

disclosures occurred within 1 year of the appellant’s removal. See Inman v. Department

of Veterans Affairs, 112 M.S.P.R. 280, ¶ 12 (2009). Under the facts of this appeal, the

factors that the administrative judge considered in assessing the appellant’s case in

chief are more properly directed to the agency’s affirmative defense. ID at 52-53; see

generally Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).

13

Furthermore, we disagree with the administrative judge that the appellant’s

supervisor was unaware of this alleged activity because the record contains

unrefuted documentary evidence that the appellant informed his supervisor of this

activity by email the same day. ID at 52; IAF, Tab 9 at 55-56. In fact, the

appellant’s supervisor testified that he read this email. HT1 at 55, 197 (testimony

of the appellant’s first-level supervisor). The fact that he might not have fully

understood the nature of the appellant’s complaint or received subsequent contact

from the IG does not mean that he was unaware of the appellant’s claim that he

had filed an IG complaint. ID at 52; HT1 at 66-67 (testimony of the appellant’s

first-level supervisor); see Ayers v. Department of the Army, 123 M.S.P.R. 11,

¶ 25 (2015) (requiring the appellant to show only that the fact of, not necessarily

the content of, the protected activity was one of the factors that tended to affect

the personnel action in any way). In the context of this appeal, these

considerations go more properly to the agency’s affirmative defense than to the

appellant’s case in chief. See generally Carr v. Social Security Administration ,

185 F.3d 1318, 1323 (Fed. Cir. 1999). However, as with the appellant’s

February 2017 disclosures, there appears to be a dispute about whether the

appellant actually filed an IG complaint as he claims. HT2 at 689 (agency’s

closing statement). The administrative judge did not make any definitive finding

on the matter, and as the agency pointed out, there is no documentary evidence,

apart from the appellant’s email, that such a complaint was actually filed. ID

at 51; HT2 at 689 (agency’s closing statement). Again, we find that the

administrative judge is in the best position to determine the credibility of the

appellant’s testimony on the matter. HT2 at 488 (testimony of the appellant). If

the administrative judge finds that the appellant filed a complaint with the IG as

alleged, the knowledge/timing test is satisfied with respect to the appellant’s

removal 9 months later. See Powers v. Department of the Navy, 97 M.S.P.R. 554,

¶ 18 (2004). If the administrative judge finds that the appellant did not file an IG

complaint as alleged, he should nevertheless consider whether the appellant’s

14

supervisor perceived him as a whistleblower by virtue of the May 3, 2017 email.

See generally King v. Department of the Army, 116 M.S.P.R. 689, ¶ 8 (2011).

¶21 According to the guidance set forth above, the administrative judge shall on

remand adjudicate the appellant’s whistleblower claim with respect to the three

claimed protected activities discussed above. IAF, Tab 16 at 11-14. If the

administrative judge finds that the appellant engaged in protected activity that

was a contributing factor in his removal, as established by the knowledge/timing

test or otherwise, or that the appellant was a perceived whistleblower, he shall

proceed to the issue of whether the agency has shown by clear and convincing

evidence that it would have removed the appellant even in the absence of his

protected activity. The administrative judge’s analysis in this regard shall be in

accordance with the standard set forth in Whitmore v. Department of Labor,

680 F.3d 1353 (Fed. Cir. 2012).

¶22 Finally, in light of the Federal Circuit’s decision in Santos, the

administrative judge shall consider on remand whether the appellant’s pre-PIP

performance affects the analysis of the appellant’s whistleblower affirmative

defense. The administrative judge should provide the parties with the opportunity

to submit evidence and argument on this issue and should address any such

argument and evidence in the remand initial decision. See Spithaler v. Office of

Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial

decision must identify all material issues of fact and law, summarize the

evidence, resolve issues of credibility, and include the administrative judge’s

conclusions of law and his legal reasoning, as well as the authorities on which

that reasoning rests).

ORDER

¶23 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

15

¶24 Notwithstanding the remand proceedings on the appellant’s whistleblowing

affirmative defenses, we ORDER the agency to cancel the appellant’s removal

and restore him retroactive to January 8, 2018. See Kerr v. National Endowment

for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this

action no later than 20 days after the date of this decision.

¶25 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶26 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶27 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶28 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

16

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

FOR THE BOARD: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

DEFENSE FINANCE AND ACCOUNTING

SERVICE

Civilian Pay Operations

DFAS BACK PAY CHECKLIST

The following documentation is required by DFAS Civilian Pay to compute and pay back pay

pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following

checklist to ensure a request for payment of back pay is complete. Missing documentation may

substantially delay the processing of a back pay award. More information may be found at:

https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by

vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the

specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket

comments as to why the documentation is not applicable:

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s

until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until

notified to do so by DFAS Civilian Pay.***

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee

in a job undertaken during the back pay period to replace federal employment.

Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,

include record of any unemployment earning statements, workers’ compensation,

CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,

or severance pay received by the employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority

under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment

they may have received. The payroll office must collect the debt from the back pay award. The

annual leave will be restored to the employee. Annual leave that exceeds the annual leave

ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by

the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information

describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63).

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be

collected (if applicable).

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement (if applicable).

2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address to

return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave

to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and

required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump Sum

Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.